Arbitrator Orders Fired DC Officer Reinstated

By Jeffrey Anderson On Jul 19, 2011
Source: The Washington Times

An arbitrator has overturned for the fifth time the refiring of a reinstated Metropolitan Police Department officer, lending support to persistent accusations by rank-and-file officers that Chief Cathy L. Lanier has systematically abused their due process rights and undermined MPD's disciplinary system.

The ruling is among the many "inefficiency cases" - so-named for the rationale used by MPD to refire 18 of the 27 officers who had been reinstated - that have been overturned by arbitrators, with back pay, raising further questions about the chief's judgment in handling personnel matters.

It also underscores what police union officials and their representatives have argued for years: Chief Lanier, in response to negative media attention, implemented a flawed legal opinion by the D.C. Office of the Attorney General (OAG) in refiring the 18 officers, who had been fired and then reinstated on appeal.

Four inefficiency cases remain to be decided. Nine other officers kept their jobs in spite of Chief Lanier's attempts to refire them.

According to the July 8 arbitrator's ruling, the MPD charged former officer Edwin Santiago in 2004 with moonlighting without approval and lying to investigators. After a police trial board sustained the charges, Mr. Santiago was fired in September 2004, the ruling states.

The MPD reinstated him with back pay and benefits in 2007 when the D.C. Public Employee Relations Board found the department had violated his right to a timely hearing, according to the ruling, and he continued to work without incident.

"That should have been the end of the matter," arbitrator Andrew M. Strongin wrote of Mr. Santiago's reinstatement.

But in May 2008, after "local news outlets" disclosed MPD's willingness to reinstate police officers who had violated the law, Chief Lanier moved to refire Mr. Santiago and 17 others "for reasons that appear to be a response to negative publicity," Mr. Strongin wrote.

First, she solicited an "evaluation" from the attorney general's office that cause existed to terminate the officers for inefficiency, according to the ruling.

On May 23, 2008, Attorney General Peter J. Nickles told Chief Lanier in a letter that reinstatement of the officers, including Mr. Santiago, posed a "profound public safety issue." He wrote that when an officer has engaged in misconduct that calls the officer's credibility into question, "that officer has irreparably impaired his or her ability to serve the criminal justice system."

'Credibility can't be trusted'

Armed with the Nickles letter, Chief Lanier issued a news release that same day claiming that several of the officers were reinstated "due to administrative error."

"We can't have officers testifying in court when their credibility can't be trusted," she said.

She then asked the OAG to review the 27 reinstatements to determine "whether or not these individuals could be reasonably retained as MPD officers," according to an Aug. 1, 2008, letter that Mr. Nickles sent to Chief Lanier. Of the 27, Mr. Nickles said his office would not rely on or call as witnesses 18 of them.

"We also believe that the conduct is serious enough - and the supporting documentation is compelling enough - to support any decision that MPD would make about these officers, including termination," he wrote.

Chief Lanier had solicited similar advice from U.S. Attorney Jeffrey A. Taylor, who told her that his office had a duty to disclose wrongful conduct if an officer was called to testify. It would be "difficult to effectively utilize" such an officer who had been found guilty of misconduct, he wrote in a July 30, 2008, letter. Mr. Taylor reiterated that advice in an Aug. 27, 2008, letter. He declined to comment for this article.

Based on the letters from the OAG and the U.S. attorney, Mr. Santiago was charged Sept. 23, 2008, with "repeated and well-founded complaints concerning the performance of police duty," resulting in a violation of general orders for "inefficiency." The notice also cited the July 30, 2008, letter from Mr. Taylor saying Mr. Santiago's court testimony "would not be sponsored" by the U.S. attorney - an assertion nowhere to be found in that letter, a copy of which was obtained by The Washington Times.

The arbitrator identified other flaws in Chief Lanier's handling of the matter. According to Mr. Strongin's ruling, both the OAG and the U.S. attorney maintain lists that include the names of officers with records of convictions, ongoing investigations or misconduct. But, he noted, "Inclusion on the list means that an officer's prior conduct is subject to disclosure, not that the officer is barred from testifying."

In addition, Assistant U.S. Attorney Roy McCleese, appellate division chief, testified at the Santiago trial board that his office's advice "does not explicitly request any kind of discipline." He declined to comment for this article.

Similarly, according to the arbitrator's ruling, Robert Hildum of the OAG was prepared to testify that his office's advice "was not in the nature of a complaint, but more of a notification going forward with respect to the situation as related to [Mr. Santiago]." He also declined to comment.

Fired again

Nevertheless, the trial board found Mr. Santiago guilty of inefficiency and the MPD fired him on Sept. 17, 2008. During the course of Mr. Santiago's appeal, Sgt. Robert Merrick of the Internal Affairs Division said MPD officials had assigned him to investigate the Santiago matter and dictated the format of the charges he was expected to file, including the questions he was to ask of Mr. Santiago, the arbitrator's ruling states.

Stopping short of endorsing what Mr. Santiago's attorneys claimed was a "sham investigation," Mr. Strongin said Chief Lanier "directed Agent Merrick to conduct an investigation while simultaneously directing him to charge [Mr. Santiago] with inefficiency regardless of his findings."

Mr. Strongin also said the chief's solicitation of legal advice convinced him that "MPD was not simply motivated by receipt of new evidence, but rather actively engaged in a process of creating a new charge based on old facts."

"There is scant if any evidence to support MPD's assertion that [Mr. Santiago's] ability to testify free of [credibility-related] concerns in fact is an essential element of [his] job," he wrote.

Asked for comment on the ruling, Chief Lanier said in a Friday email, "While I am disappointed in the arbitrators' decisions we have received to date, I will not back away from my effort to rid the department of members who have engaged in misconduct that has irreparably undermined their credibility."

The OAG and the U.S. attorney's office declined to comment.

Mr. Nickles, now in private practice, said MPD makes the decision on whom to fire, but if "uncontested violations of law" by an officer were so egregious that, based on a review by independent lawyers, the officer could not be called as a witness, then "the officer cannot do his or her job efficiently.

"The fact that an arbitrator doesn't agree doesn't affect my confidence in the analysis or actions of the lawyers in my office," he said.

Mr. Santiago's attorney, James Pressler, the general counsel for the Fraternal Order of Police, said Mr. Nickles "was completely wrong on the law, and there was no legal basis for taking action against these officers.

"They knew it, or should have known it, at the time they refired 18 of them," he said.